Inadequate legal aid for NRC excluded persons, CJP moves Guwahati HC Plea for robust infrastructure to deal with impending deluge of applicants at FTs

01, Mar 2021 | CJP Team

Citizens for Justice and Peace (CJP) has filed a petition before Guwahati High Court (previously Gauhati HC) seeking directions to the state to formulate effective and robust modalities for legal aid in terms of having trained panels of lawyers and adequate front offices in light of the impending appeals to be filed before Foreigners Tribunals by people from marginalised sections to prove their citizenship.

Senior advocate Mihir Desai appeared for CJP during the online proceedings assisted by Advocate Mrinmoy Dutta. The court has issued notice. The subsequent hearing was held on April 5, and the case has now been adjourned till May 10, 2021.

CJP has played an integral role in providing paralegal and legal assistance to those excluded from the National Register of Citizens (NRC), to help them gather requisite documents that will make their case for citizenship stronger before the Tribunals. CJP’s Assam Team’s continuous on-ground efforts included responding to distress calls from remote areas, on a daily basis. It is through this three-and-a-half-year effort, the team noticed that there was a lack of concerted efforts being made by the state government for providing legal aid to those excluded from NRC, as directed by the Ministry of Home Affairs (MHA).

Now that the final NRC has been published, and 19,06,657 people have been excluded from the final list, CJP’s campaign has become even more focused. Our objective now, is to help these excluded people defend their citizenship before Foreigners’ Tribunals. We are also helping secure the release of detention camp inmates as per the Supreme Court order on their conditional release. For this we have already started conducting a series of workshops to train paralegals to assist people at FTs. We will also be publishing a multi-media training manual containing simplified aspects of legal procedure, evidentiary rules, and judicial precedents that will ensure the appeals filed against the NRC exclusions in the FTs are comprehensive and sound, both in fact and in law. This will assist our paralegals, lawyers and the wider community in Assam to negotiate this tortuous process. For this we need your continued support. Please donate now to help us help Assam.

Why has the petition been filed?

The petition seeks clarification on a press communication issued by MHA on August 20, 2019 which stated that legal assistance would be provided to those excluded from NRC, those who are in need of such legal aid. In early 2020, CJP petitioned the High Court on the issue with three families of those excluded. Senior counsel Mihir Desai assisted by Advocate Mrinmoy Dutta appeared in the matter. The petition was withdrawn after the Hon’ble High Court opined that this was a fit case for a public interest litigation.

From April 2020 to November 2020, the organisation was involved in detailed correspondence and representations to both the National Legal Services Authority (NALSA) and the Assam State Legal Services Authority (ASLSA).

As CJP is actively involved in ground-work it never came across any concerted efforts in furtherance of the 2019 communication issued by MHA, and thus submitted a representation before Secretary of Home Department in Assam for framing scheme and modalities for providing effective legal aid to the NRC left outs. CJP also asked the Home Department about what steps had been taken by the government so it can, through its widespread ground-work, create awareness among the people in need.

The petition emphasises that those excluded cannot be deemed non-citizens till the remedies available before them are exhausted, and unless the marginalised among them are not provided adequate legal aid, they would suffer irreparable loss and injury.

The Assam State Legal Services Authority (ASLSA) finally responded in November 2020 stating that it has enough machinery to deal with any action taken by the government with regards to NRC. The ASLSA letter also revealed that only two Taluk Level Legal Services Authorities are functioning, while there are 78 taluks in the state. The letter also states that once rejection slips are handed out, legal camps can then be organised.

It was in response to this last communication that CJP, has in fact, gone one step further and conducted an independent survey in 10 districts of Assam to assess the preparedness of District Legal Services Authorities (DSLA) which revealed that the front offices were either not present or the ones that had front offices were inadequate in terms of space or in terms of staff. It was also revealed that in none of the ten legal services authorities, were the personnel trained on Citizenship, NRC, Immigration or the Foreigners Act, all of which are germane to the impending situation of people having to appeal before Foreigners Tribunal to prove their citizenship. It also revealed that a total of 10 cases were handled by the counsel of these DSLA, all by Dhubri DLSA: 7 in 2019, and 3 in 2020.

The petition filed in the High Court points out how more such authorities need to be set up at Taluk level, otherwise the process of providing legal aid remains largely inadequate. About proposed legal camps, the petition points out that once rejection slip is handed over, the person has only 120 days to file appeal before a Foreigners Tribunal and it is a time-consuming task to gather relevant documents, for 19 lakh people in Assam and hence these legal camps should be operational in advance so people are given proper legal aid.

The petition states that ASLSA’s wait-and-watch approach towards modifying its front offices and empanelling more retainers and paralegals shows that there is a lack of proactive steps being taken to prepare the institutions to deal with an impending situation.

“There are no reports anywhere that any panel of lawyers or for that matter any modalities for legal aid to those excluded from the NRC final list is available or has been prepared,” states the petition.

Constitutional provisions

The petition also points towards Article 39(A) which envisages the operation of a legal system which promotes justice on the basis of equal opportunity which should not be denied to any citizen by reason of economic or any other disabilities.

It also mentions that under Article 21, right to legal aid is an essential part of the reasonable, fair and just procedure necessary to be followed before any deprivation of life and liberty. Article 21 applies to not just citizens, but foreigners as well, and since the Article protects life and liberty, the same is incomplete without right to legal aid, observes the petition.

“Every person has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty and the object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge. Failure to provide these minimum safeguards in itself is prejudice to an accused,” stated the petition.”

The petition talks about how Article 14 emphasises equal justice, which includes the right to legal aid to a person who is unable to engage a lawyer on account of poverty indigence or incommunicado situation.

Statutory provisions for legal aid

The petition also highlights the various provisions of the Legal Services Authority Act which require the authorities at different levels (State, district, taluk) to provide legal aid, to promote legal services with help of voluntary organisations, to constitute such authorities at each level, to have empanelled lawyers with prescribed qualification, to provide services of legal advice, drafting, conveyancing to beneficiaries of legal aid and so on.

The petition states that legal aid forms an integral part of the justice delivery system, promotes fairness and equality in matters of dispensation of justice so that no one is deprived of a fair opportunity to defend himself on account of economic or any other disabilities.

The NRC in Assam lays emphasis on documents as proof of citizenship, which leads to a complicated procedure of analysis of documentary evidence and thus the marginalised sections are in need of legal aid in the pre-trial stage itself, since it is the most crucial stage while defending citizenship before a Tribunal.

Duty of the state

The petition highlights how it is the duty of the state to provide legal aid not just by statute but also as upheld by the Supreme Court whereby it stated, “It would make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service… it is therefore, not necessary for a person to ask for legal aid”.

The petition states, “The process of providing legal aid in defending such an important right of citizenship cannot be a matter of casual dispensation and there is a necessity to have a proper panel of lawyers and a detailed framework laid out, as otherwise the legal aid rendered would be a mere formality”.

The petition, overall, highlights the need to provide legal aid at pre-trial stage as 19 lakh people will soon be required to appeal before Tribunals to prove their citizenship, also the need to train paralegal and lawyers at LSAs in relevant legislation and procedures of law so they can provide effective legal aid to those in need.

The petition emphasises that the legal aid to be provided cannot be reduced to a mere formality but has to be effective given the fact that the issues involved would determine the citizenship of lakhs of people, many of whom are marginalised, lacking the education and wherewithal to defend themselves or put up their claims in an effective manner.

Pleadings

The petition has prayed for writs to direct state authorities to appoint adequate legal aid lawyers and provide them with manuals so that uniform legal assistance is provided, to formulate modalities of legal aid for NRC left outs. It also prays that the court directs that unless necessary advance arrangements for legal aid are made, rejection slips should not be handed out to those excluded.

Through this petition, CJP seeks to have a state machinery ready to assist the marginalised sections, among the 19 lakh excluded from NRC, so that no rightful citizen gets deprived of his/her citizenship merely because of lack of proper and effective legal aid.

Additional considerations

Apart from the pleadings, the petition also places before the court certain suggestions for its due consideration:

  • To set up Taluk level Legal Services Authority across all taluks
  • Call for applications from those who are in need for legal aid at least 3 months before rejections slips are issued
  • Basis these applications, modify front offices, empanel lawyers and paralegals, train them in citizenship laws, Foreigners Act and NRC
  • Adequate monitoring committees for each taluk
  • Set up legal aid camps for scrutinizing documents
  • Draft Model appeal formats
  • Appoint counsel with more than 15 years’ experience to guide conducting advocates
  • Enable civil rights organisations like CJP to take trainings

The complete petition may be read here:

 

Related:

CJP Impact: 34th person walks out of Assam Detention Camp

CJP helps release yet another helpless woman from Assam’s detention camp

CJP Assam: Empowering those battling the citizenship crisis

 

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